You may have heard the news about a ninety-five year old little wedding chapel called The Hitching Post in Coeur d’Alene, Idaho. Owned and operated for twenty-five years by two ordained Christian ministers in their 60's, Don and Lynn Knapp, the Hitching Post is a place where “marriage begins”. Within days of same-sex marriage coming to Idaho, Coeur D’Alene became “Ground Zero” in the struggle to preserve religious freedom in America.
After being told repeatedly by the city that they would be compelled to marry same-sex couples or face criminal prosecution, the pastors filed suit after declining a request to perform a same-sex marriage. Somewhere along the way, the simple request from two pastors that the government respect their religious freedom, led to a mountain of misinformation trafficked by opponents of liberty, distorting the key issues of what is really an open-and-shut free speech case.
So, we need to set the record straight with the top four things you need to know about the situation.
No. 1: The Hitching Post is a for-profit corporation, and it always has been.
Inaccurate statements that The Hitching Post is a non-profit made by the Coeur d’Alene city attorney in a letter to Alliance Defending Freedom, which represents the pastors, are largely to blame. This inaccuracy has unfortunately been repeated by many media outlets.
However, the Hitching Post has always been for-profit and has never represented itself otherwise. The Knapps merely wound their prior for-profit business into an Idaho LLC in October 2014. It’s still a for-profit that offers its services for a fee. The Hitching Post has also always served a religious purpose – performing religious wedding ceremonies – a purpose the Knapps made explicit in separate bylaws they recently adopted. They took these clarifying actions because of the rapidly changing circumstances in Idaho, namely, that court-imposed same-sex marriage was likely soon to be a reality (it became one on October 15) and the city’s threats that it would prosecute the Knapps if they declined to perform a same-sex wedding ceremony.
No. 2: Contrary to a statement made by the city of Coeur d’Alene this week, the city, on at least three separate occasions, made clear that because the Hitching Post is a for-profit company the Knapps would be in violation of the law and subject to criminal prosecution and punishment if they declined to perform same-sex marriages.
This week, the city said it had never threatened legal action against the Knapps. That’s simply not true. After the Idaho district court struck down Idaho’s marriage laws in May 2014, the deputy city attorney gave a media interview where he stated that because the Hitching Post is a for-profit company the Hitching Post’s owners would likely be in violation of Ordinance 9.56 if they declined to conduct a same-sex ceremony. In light of this, owner Don Knapp called the city to clarify whether the ordinance applied to the Hitching Post. The city privately affirmed on two separate occasions what it promised publicly – that the pastors would be in violation of the ordinance and subject to up to six months in jail and up to $1,000 in fines if they declined to perform a same-sex wedding ceremony pursuant to their religious beliefs.
After the suit was filed, city officials sent the Knapps’ attorneys a letter confirming that for-profit wedding chapels, like the Hitching Post, would violate the ordinance if they declined to perform same-sex wedding ceremonies. The letter states that nonprofits are exempt from the ordinance, but that for-profit wedding chapels are not: “if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.” As eminent First Amendment scholar Eugene Volokh observed, this letter confirmed that The Hitching Post and the Knapps were subject to jail time and fines if they violated the ordinance by declining to perform a same-sex wedding ceremony.
The city has since backed down from this position, which is not a surprise considering the public outcry over their obvious and repeated threats to jail ministers for following their faith. But to fix the ordinance, the city needs to adopt new language that will make clear who is subject to it. It is a fundamental violation of due process to pass a criminal law that does not clearly specify to whom it applies.
No. 3: The lawsuit is not premature (see #2).
A caller to the Hitching Post inquired Oct. 17 if the Knapps would perform a same-sex wedding ceremony. They politely declined because of their religious convictions. This denial put the Knapps at immediate risk of being prosecuted and sentenced to jail time. Alliance Defending Freedom, on behalf of the Knapps, filed the lawsuit and a request for a temporary restraining order that afternoon to prevent the city from enforcing the ordinance against the Knapps. The Knapps received another request to perform a same-sex ceremony later the same day. They declined once again. This put them at risk of being prosecuted over a second denial.
So did the Knapps file their lawsuit prematurely, since the city hadn’t officially launched the prosecution process? No. The city’s private and public statements left the Knapps with no choice. It was without question that the city interpreted the law to obligate the pastors to perform same-sex weddings in violation of their constitutionally-protected freedom of religion and free speech rights.
Anyone who was told by the government that he or she would be prosecuted and face up to six months in jail and up to $1,000 in fines for exercising their First Amendment rights would not wait around to see if the government made good on that threat. They would file a lawsuit to protect their freedom and avoid jail and fines.
No. 4: Does the recent Conestoga Woods/Hobby Lobby Supreme Court decision protect the Hitching Post?
Yes and no. The Supreme Court in Hobby Lobby/Conestoga Wood Specialties decision sent a clear message that business owners do not have to abandon their religious beliefs simply because they open a business. That case was decided under the federal Religious Freedom Restoration Act (RFRA). This is a municipal law, so the decision does not directly apply. In City of Boerne v. Flores, the U.S. Supreme Court found that federal RFRA does not apply to state law. However, Idaho has a state RFRA that is a corollary of the federal RFRA and reflects the same principles. Thus, it stands to reason, that should the lawsuit move forward, the Idaho RFRA would protect the religious freedom of business owners similar to how the federal RFRA did in Hobby Lobby/Conestoga Wood.
The Road Ahead
To be sure, it is a grim hour in America: the city of Houston using subpoenas to intimidate pastors into silence; California forcing churches to cover abortion-on-demand in their insurance plans; and here, the city of Coeur d’Alene, Idaho demanding ordained ministers choose between performing ceremonies that violate their faith or going to jail. Ultimately, if the government can force pastors to operate against their faith’s teachings and punish them if they don’t, no American’s freedom is safe. Let’s hope the city of Coeur d’Alene realizes this and moves in favor of liberty.